What makes place-shifting devices so powerful also makes them appear very …

Anytime, anyplace

In theory, "place-shifting" does for location what "time-shifting" has done for scheduling. A few cables here, a few networking adjustments there, and you can use a product like the Slingbox or the software-based Orb to watch your TV (or TiVo, or DVD player) from just about anywhere you can get a network connection, be it your office, your hotel room, or the other side of the planet. Yet what makes place-shifting devices so powerful also makes them appear very dangerous to established entertainment and media companies.

Consider recent comments from HBO's Bob Zitter that accuse the Slingbox's makers of violating HBO's own copyrights by "rebroadcasting" content across the Internet, or Major League Baseball's strong dislike for the way place-shifting affects their business model. Grumbles withstanding, there have been no lawsuits over place-shifting yet, but that could change in the blink of an eye. In the United States, the issues derive primarily from battles over what constitutes fair use. In Europe, the situation is more complicated because of the way television is regulated. A recent controversy surrounding the Slingbox demonstrates how place-shifting will ultimately bring about another round of disputes over fair use and the complex interrelationship between innovation and protecting the rights of both consumers and content producers.

Innovate or placate?

When Sling Media launched the Slingbox, the company knew that it would draw the attention of content producers. The device features the ability to stream video sources across the Internet (or your local TCP/IP network), and if you work in Hollywood, that alone might be enough to send you crawling up the walls.

When I spoke with Sling Media right after their product launched last year, they made two things clear to me. First, they stressed that using the Slingbox for anything other than personal use was a violation of the EULA. Second, they said that there was no approved way to capture the Sling Stream and save it to disk (you can't blame me for asking). I interpreted both decisions as attempts to placate rights holders. What Sling Media did not reveal to me at the time was their intention to also encrypt the video stream. This will become important in a moment.

The Slingbox lived in isolation for the first several months of its life, streaming video to users and making it possible for travelers to watch out-of-market sports while on the road. Several months went by before Applian Technologies showed up on the scene offering a product they dubbed "Replay SlingCorder"—an application that conveniently intercepts the Slingbox's video stream and records it. The application extended the usefulness of the Sling Box by allowing users to record TV that comes through the device, much like a DVR.

Sling Media responded by asking Applian to change the name of their product, apparently feeling as though the "Sling" in the title raised trademark implications. Within days, Sling Media also unveiled a new beta firmware that introduced encryption. Whatever its name, Applian's recording software was shut out. For its part, Sling Media insists that encryption has been planned since day one, and they also say that the inclusion of encryption in the newest beta firmware was a coincidence in terms of timing.

What's not a coincidence, however, is that fact that applications can no longer (legally) record the Sling Stream. Jeremy Toeman, vice president of market development for Sling Media, told Ars Technica that the company believes that content companies have a right to protect their content, while consumers have a right to, well, consume it. "We try to stay in that fair balance," Toeman said, adding that "content providers want to know that their content is secure." Adding encryption to the stream is one way to prevent unauthorized use of Sling Media's product—unauthorized use that could tip the balance of rights they're trying to achieve.

Sling Media is now taking heat for their decision from some customers, despite the fact that their recent firmware significantly improved their product's performance. In a series of posts on the the Sling Community site (not affiliated with Sling Media), Toeman explained that Applian had developed their product without contacting Sling Media, and that the whole mess really wasn't about punishing one company.

"Unfortunately, it's clear that the Applian At-Large Recorder has gotten caught in the middle of this. As a small company, we haven't had the resources to properly support third-party developers at present, although it is our goal to eventually have an API or SDK for third-parties to use. If you consider the numerous ongoing software developments we have at Sling (Windows, OSX, Windows Mobile, other platforms, etc), we have to pick and choose where our engineering efforts go extremely carefully, and while we have very ambitious goals, we still have a lot of realities to deal with!"

The "realities" Toeman referred to include the legal landscape. Timeshifting, for instance, has been upheld by the courts, and devices like TiVo have made it quite popular in recent years—much to the entertainment industry's chagrin. Place-shifting, on the other hand, has no Supreme Court decision to protect it. Any company looking to capitalize on the promises of place-shifting must contend with the possibility of finding place-shifting listed as Public Enemy #1 of the video entertainment business, and that could spell trouble. Any innovator working on a entertainment-based product will do everything it can to avoid catching the Napster bug, because once a product or service becomes synonymous with copyright infringement, the only money for the manufacturer to collect will be for legal fees.

Ken Fisher / Ken is the founder & Editor-in-Chief of Ars Technica. A veteran of the IT industry and a scholar of antiquity, Ken studies the emergence of intellectual property regimes and their effects on culture and innovation.